The nation’s third Vioxx trial and the first in a federal courtroom gets under way in Houston this week, and a verdict would break a current tie in one of the most high-profile consumer legal battles in the past decade.

Scheduled to begin with jury selection Tuesday, the trial comes less than a month after a New Jersey jury found that drug giant Merck was not liable for the heart attack of an Idaho postal worker who took Vioxx.

But it also comes three months after a Brazoria County jury awarded $253 million to a widow whose husband, also a Vioxx user, died in his sleep.

The latest case will pit Merck against the widow of Florida seafood salesman Richard “Dicky” Irvin Jr., 53, who died of a heart attack in May 2001. Key to the case will be how long Irvin took the drug and if the evidence shows it was long enough to cause his heart problems.

Merck pulled Vioxx, which had annual sales of $2.5 billion, from the market in September 2004 after researchers said it doubled the risk of heart attacks and strokes in patients who took it for 18 months or longer.

In the Texas case last summer, evidence showed that Robert Ernst, a 59-year-old marathon runner, took Vioxx for seven months. In the New Jersey case, testimony revealed that Vietnam veteran Frederick Humeston, 60, took the painkiller for two months. Irvin, a former college and professional football player, reportedly took it for slightly less than a month.

The issue of short-term use of Vioxx is a major one. A judge overseeing thousands of state cases in New Jersey estimated that as many as 40 percent of New Jersey cases involve use of less than 18 months.

“If a big chunk of the litigants only took Vioxx for less than 18 months, then if the outcome of this case is very favorable to Merck … that would presumably send a powerful message to the plaintiffs that you are not going to win,” said Steven Shavell, director of the John M. Olin Center for Law, Economics, and Business at Harvard Law School.

Also likely to be a major focus of the trial is whether Irvin was in poor health before he began taking Vioxx. Merck lawyers are expected to argue that he was overweight, unhealthy and would have suffered a heart attack anyway. His widow’s lawyers are expected to refute those contentions, saying in a recent conference call with reporters that he was “healthy as a horse.”

That’s how his boss, John Weeks, owner of the Seafood Shoppe in St. Augustine, Fla., described him Friday.

Weeks said Irvin was “probably somewhat overweight,” but his build was consistent with that of a former athlete.

“I compared him to a bull,” said Weeks. “He worked behind a desk, but he always pitched in to unload boats and trucks.”

Weeks said he had just spoken with Irvin, who was at work, on the telephone one morning when Irvin said he had to call him back. Shortly after that, another employee called Weeks and told him that Irvin was slumped over at his desk.

Expecting ‘a war’

Jere Beasley, an Alabama attorney representing Irvin’s widow, Evelyn Irvin Plunkett, said he was gearing up for a battle with Merck.

“We expect it is going to be a war,” he said in a conference call with reporters before U.S. District Judge Eldon Fallon asked lawyers not to publicly discuss the case last week. “We are going to fight hard. … They put us in that underdog role, but I don’t mind being in that role.”

Much of the same evidence that surfaced in the first two trials is expected to be presented to the six-person jury in Houston. Plunkett’s lawyers have said they will present testimony and documents showing that Merck knew that Vioxx was linked to cardiovascular problems long before it was taken off the market.

“What did Merck know, when did they know it and what did they do about it?” Beasley said when asked to characterize Plunkett’s case. They also said they plan to tell jurors about Merck’s so-called “dodgeball” training game in which salespeople were told to avoid doctors’ questions about Vioxx’s potential heart risks.

All of the testimony likely will have to be condensed, however. Fallon has told lawyers for both sides that he wants to wrap up testimony within two weeks, Beasley said.

Estimated 6,500 cases

Merck faces an estimated 6,500 Vioxx cases nationwide, and some analysts have suggested its overall litigation costs could hit $20 billion.

Jon LeCroy, an analyst with broker Natexis Bleichroeder, said a verdict for either side would not have a significant impact on Merck stock, unless the jury awarded large damages as in the previous Texas case. That verdict will be reduced to no more than $26.1 million under state punitive damages caps.

“My guess is that every case that comes after the previous two are going to be less important” to investors, LeCroy said. “Unless it is astronomical, it probably won’t have that much more impact.”



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